Deprivation of liberty & young people: the limits of parental consent
In a series of judgments over the last two years the High Court has clarified the circumstances in which parental consent can obviate the need for Article 5 safeguards for a child or young person whose confinement meets the Cheshire West ‘acid test’.
Please note that the judgment in Birmingham City Council v D [2016] discussed in this update has now been overruled on appeal. Please refer to our legal update dated 14th November 2017 for the current legal position.
Trust A v X & A Local Authority [2015] EWHC 922 (Fam)
This case concerned the application of the Cheshire West ‘acid test’ to those under 16. D was a 15-year-old boy with ADHD, autism, Tourette’s and learning disabilities, who was living under continuous supervision and control in a hospital psychiatric unit where he was not free to leave. D lacked capacity to consent to these arrangements.
The issue for the court was whether D’s parents could, in the exercise of parental responsibility, consent to D being confined in circumstances which would otherwise amount to an unlawful deprivation of liberty.
Keehan J held:-
- The ‘acid test’ applies to those under 16 as it does to adults
- D’s living conditions satisfied the ‘acid test’.
- The court was not legally bound by Thorpe LJ’s assertion in RK v BCC & Others [2011] EWCA Civ 1305 that ‘a parent may not lawfully detain or authorise the deprivation of liberty of a child’ as this was unsupported by legal authority.
- The parents’ consent to D’s confinement at the psychiatric unit fell within the scope of parental responsibility and as such rendered what would otherwise amount to a deprivation of liberty not a deprivation of liberty.
- Keehan J stated that when considering the exercise of parental responsibility it was necessary to take into account D’s autism and other conditions:-
The decisions which might be said to come within the zone of parental responsibility for a 15-year-old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15-year-old son suffers with D’s disabilities. Thus a decision to keep such a 15-year-old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill-treatment. The decision to keep an autistic 15-year-old boy who has erratic challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility.
Birmingham City Council v D & W [2016] EWCOP 8
In 2016 the case of D came before the High Court again. By this time D had turned 16 and was living in a residential placement. D’s living arrangements still amounted to continuous supervision and control and he was not free to leave. D still lacked capacity to consent to the arrangements.
The question for the court was whether, given that D was now 16, parental consent could still be relied upon to authorise D’s confinement in circumstances which would otherwise give rise to a deprivation of liberty.
Keehan J held:-
- He stood by his previous decision in Trust A v X & A Local Authority but stated that things had changed now that D was 16. This is because the law treats 16 and 17 year olds differently to those under 16. This is most notably reflected in the Mental Capacity Act 2005 which includes 16/17-year-olds within its remit.
- In the context of 16/17 year olds, parental consent to a young person’s confinement falls outside the scope of parental responsibility, regardless of capacity. Keehan J stated:-
Whilst acknowledging that parents still have parental responsibility for their 16 and 17-year-old children, I accept that the various international conventions and statutory provisions referred to, the UNCRC and the Human Rights Act 1998, recognise the need for a greater degree of respect for the autonomy of all young people but most especially for those who have attained the age of 16 and 17 years. Accordingly, I have come to the clear conclusion that however close the parents are to their child and however cooperative they are with the treating clinicians, the parent of a 16 or 17-year-old young person may not consent to their confinement which, absent a valid consent, would amount to a deprivation of that young person’s liberty… I am satisfied that young people of 16 or 17 years are entitled to the full protection of their Article 5(1) rights irrespective of their capacity to consent to their treatment or their living arrangements.
- Given that the MCA DoLS authorisation process does not apply to under 18’s, Court of Protection authorisation is required so as to prevent an unlawful deprivation of liberty where a young person has attained 16.
A Local Authority v D & Others [2015] EWHC 3125 (Fam)
Keehan J considered whether, in the case of a child subject to a care order or an interim care order, the local authority can in the exercise their statutory parental responsibility consent to what would otherwise amount to a deprivation of liberty? His emphatic view was that it could not – irrespective of the child’s age. In such cases court authorisation will always be required so as to prevent a breach of Article 5.
Comment
Following this series of High Court judgments the law is currently as follows:-
- Adults whose confinement satisfies the ‘acid test’ and lack capacity to consent require deprivation of liberty authorisation.
- For 16 and 17-year-olds whose confinement satisfies the ‘acid test’ and lack capacity to consent (or who do have capacity but refuse), those with parental responsibility cannot give valid consent to that confinement. Article 5 safeguards are required. As the standard DoL’s authorisation process does not apply to under 18’s, court authorisation is required so as to prevent an unlawful deprivation of liberty. For the 16 or 17-year-old who lacks capacity that authorisation can be obtained from the Court of Protection. For the capacitated 16 or 17-year-old who refuses consent, that authorisation can be obtained from the Family Court.
- Where the confinement of a child under 16 satisfies the ‘acid test’ and lacks capacity to consent (or who has capacity but refuses to consent), their parents can give valid consent to their confinement providing that is an appropriate exercise of parental responsibility. If it falls outside of the ‘zone of parental responsibility’ then court authorisation from the Family Court is required in order to prevent an unlawful deprivation of liberty.
- Where a child or young person, including those under 16, is subject to a care order, the local authority, in the exercise of its statutory parental responsibility, cannot authorise their confinement. Court authorisation is required unless the child has capacity to consent and does consent to their confinement.
If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk
